Right of accused – legla aid, double jeopardy and custodial torture, Legal Services Authorities act, free legal aid. assistance help, right CrPC Code Section 304 of CrPC

1. RIGHT OF ACCUSED –
LEGAL AID, DOUBLE
JEOPARDY AND
CUSTODIAL TORTURE
:: Prepared by ::
H.S. MULIA
1

2. Disclaimer
Views expressed in this
document are for
information and
academic purpose only.
2

3. LEGAL AID TO ACCUSED.
In Section 304 of Criminal Procedure
Code, 1973 (for short 'the Code') words
used are “LEGAL AID TO ACCUSED AT
THE STATE EXPENSE IN CERTAIN CASES”
whereas, u/s 12 of the Legal Services
Authorities Act, 1987 (for short 'the Act')
criteria for giving legal services has been
prescribed. As per Clause (g) of the
Section 12 of the Act every person who is
in custody and has to file or defend a
case shall be entitled to legal services
under the Act. 3

4. There is an enabling provision under
Paragraph 125 of the Criminal Manual,
which reads as under:- Section 304,
Code of Criminal Procedure, 1973,
provides for legal aid to accused who
is unrepresented in trial before Court
of Session and who has no sufficient
means to engage pleader. The
expenses are to be borne by the State
for that. The rules for the purpose
should be properly followed by the
concerned Courts.
4

5. As provided u/s 304(2) of the Code, in
the State of Gujarat, Gujarat Legal Aid
to the Accused Expenses Rules, 1976
have been framed (Please refer Para
126 of the Criminal Manual).
Thereafter, Parliament has introduced
the Act in the year 1987 making
necessary provision for providing Legal
Aid and Legal Services. Since Special
Act came into effect, Criminal Courts
take support from the Act and allow an
UTP to get Legal Services in the form
of Legal Aid Lawyer to defend his case.
5

6. Obviously all Accused are not
UTPs and, therefore, those
accused who are on bail can
not, as a matter of right, claim
Free Legal Aid/Services under
the Act. But an accused who is
not an UTP and falls within the
criteria prescribed u/s 12 of the
Act can certainly claim Free
Legal Aid/Services. 6

7. Section 304 (2) of the Code is based
on the concept of right to be heard and
all accused who do not no sufficient
means to engage a pleader for his
defence, have the right to defend
himself. Therefore, those accused who
are not UTPs and do not fall under the
criteria of Section 12 of the Act have a
right to defend their cases through
pleader assigned by the Court, provide
it has been ascertained that such
accused no sufficient means to engage
a pleader for his defence. 7

8. Section 304 of the Code
applies only in the case of an
accused who is facing trail
before the Session Court,
whereas, Provisions of the Act
apply to all UTPs facing trail
before the Criminal Court and
all persons falling under the
criteria of Section 12 of the
Act. 8

9. Question:- Whether
Amicus Curriae can be
appointed in a trial
before the court of
Session to defend the
accused?
9

10. DOUBLE JEOPARDY.
Article 20(2) of the Constitution of
India provides that, no person shall
be prosecuted and punished for the
same offence more than once.
Article 20(2) is based on the maxim
nemo debet bis vexari, si constat
curiae quod sid pro una et eadem
causa, which means that no one
must be vexed twice if it, appears
to the court that it is for one and
the same cause. 10

11. Not only the Constitution of India but
also Section 26 of the General Clauses
Act, 1897 provides that, 'where an act
or omission constitutes an offence
under two or more enactments, then
the offender shall be liable to be
prosecuted and punished under either
or any of those enactments but shall
not be liable to be punished twice for
the same offence'.
11

12. Under Section 71 of Indian
Penal Code similar provision
has been made, and Section
300 of the Code have
recognised the same right of
an accused person. Provision of
Section 300 of the Code is
wider in its ambit in contrast to
Article 20(2) of the
Constitution of India. 12

13. This is so as the Constitutional
protection is available only to
an accused person who has
been prosecuted and punished,
whereas under the Criminal
Procedure Code, 1973 the
protection offered, also
extends to an accused person
who had been prosecuted and
acquitted. 13

14. To cover under the
provisions of clause
(2) of Article 20, the
following conditions
are necessary:
14

15. There must have been a
previous proceeding
before a court of law or a
judicial tribunal of
competent jurisdiction;
and the person must have
been ‘prosecuted’ in the
previous proceeding.
15

16. There should be not only
a prosecution but also a
punishment in the first
instance to operate as a
bar to a second
prosecution and
punishment for the same
offence.
16

17. The application of the
benefit is for an offence and
in a judicial proceeding only.
The benefit does not flow in
case of departmental action
even though based on same
facts.
17

18. Question:- Whether a
person tried for an offence
of dishonour of cheque u/s
138 of N. I. Act can again be
tried for offences of criminal
breach of trust, cheating
and abetment punishable
under the IPC (U/s 406, 420
r/w 114 of IPC)? 18

19. Answer:- In the prosecution
under S. 138, N. I. Act, the
mens rea i.e. fraudulent or
dishonest intention at the time
of issuance of cheque is not
required to be proved.
However, in the case of
offences under Penal Code
involved herein, the issue of
mens rea may be relevant. 19

20. The offence punishable under Section
420, IPC is a serious one, as the
sentence of 7 years can be imposed. In
the case under N. I. Act, there is a
legal presumption that the cheque had
been issued for discharging the
antecedent liability and that
presumption can be rebutted only by
the person who draws the cheque.
Such a requirement is not there in the
offences under IPC.
20

21. Under N.I. Act, if a fine is imposed,
it is to be adjusted to meet the
legally enforceable liability. There
cannot be such a requirement in
the offences under IPC.
The case under N. I. Act can only
be initiated by filing a complaint,
whereas, there cannot be such a
requirement for the offence
punishable u/s 406 & 420 of the
IPC. 21

22. The ingredients of offence under
S. 138 of N. I. Act and of the
offences u/s 420, 406, 114, Penal
Code are, therefore, distinct and
different. As such Trial u/s 406,
420, 114 of Penal Code of a person
earlier trial for dishonour of
cheque is not barred by doctrine
of double jeopardy.
22

23. In order to attract the
provisions of Article 20(2) of
the Constitution i.e. doctrine of
autrefois acquit or Section 300,
Cr. P.C. or Section 71, IPC or u/s
26 of General Clauses Act,
ingredients of the offences in
the earlier case as well as in
the latter case must be the
same and not different. 23

24. The test to ascertain whether the two
offences are the same is not identity of
the allegations but the identity of the
ingredients of the offence.
Motive for committing offence cannot
be termed as ingredient of offences to
determine the issue. The plea of
autrefois acquit is not proved, unless it
is shown that the judgment of acquittal
in the previous charge necessarily
involves an acquittal of the latter
charge.
24

25. Please refer the ratio laid
down in the case of
Sangeetaben Mahendrabhai
Patel v. State of Gujarat,
reported in AIR 2012 SC
2844.
25

26. Judgments rendered in the
case of G. Sagar Suri v. State
of U.P. and Ors., (2000) 2 SCC
636 : (AIR 2000 SC 754 : 2000
AIR SCW 296) and Kolla Veera
Raghav Rao v. Gorantla
Venkateswara Rao, (2011) 2
SCC 703 : (AIR 2011 SC 641 :
2011 AIR SCW 788) have been
impliedly overruled. 26

27. Question:- Which
principle may apply -
“autrefois acquit” or
“autrefois convict” ?
27

28. Answer:- Section 300 of Criminal
Procedure Code, 1973 may
arguably not be in harmony with
the Constitution since it
contemplates both autrefois acquit
and autrefois convict even though
a conscious decision had been
taken by the Drafters of our
Constitution that protection only
as regards the latter shall be
available. 28

29. Of course, the Code grants much
wider protection to the individual
and for this reason,
understandably it has not been
assailed on the touchstone of
Article 20(2) of the Constitution.
Please refer ratio laid down in the
case of Union of India v.
Purushottam, reported in AIR 2015
SC 961. 29

30. CUSTODIAL TORTURE.
Custodial torture is universally
held as one of the cruellest
forms of human rights abuse.
The Constitution of India, the
Supreme Court, the National
Human Rights Commission
(NHRC) and the United Nations
forbid it. 30

31. Whenever any complaint is
made by a prisoner, the
Judge shall fallow the
procedure prescribed under
Para 14 of the Criminal
Manual. Sessions Judge/CJM
should arrange for
Magisterial Inquiry.
31

32. Remedies Against Custodial
Torture:
There are two approaches with
respect to the remedies
provided against custodial
torture and subsequent death
as well. These two approaches
are – Legal Regime and Judicial
Precedents. They can be
explained as follows: 32

33. Legal Regime and Constitutional
Safeguards:- It has been held in a
catena of judgments that just because
a person is in police custody or
detained or under arrest, does not
deprive of him of his basic
fundamental rights and its violation
empowers the person to move the
Supreme Court under Article 32 of the
Constitution of India or move the High
Court under under Article 226 of the
Constitution of India .
33

34. Detention does not deprive one of
prisoner's Fundamental Rights.
Fundamental Rights don’t flee
when accused enters the prison,
although he may suffer shrinkage
necessitated by incarceration.
However, the extent of shrinkage
can and should never reach the
stage of torture of such a nature
that the prisoner is reduced to a
mere animal existence. 34

35. Various provisions
made in the different
enactments to
safeguard the rights of
the prisoners /
arrested persons.
35

36. Article 20 of the Constitution of
India:
Article 20 primarily gives a person the
rights against conviction of
offences. These include the principle
of non-retroactivity of penal laws
(Nullum crimen sine lege i.e. ex-post
facto laws thereby making it a
violation of the persons fundamental
rights, if attempts are made to convict
him and torture him as per some
statute.
36

37. Article 20 of the Constitution of
India also protects against double
jeopardy (Nemo debet pro
eadem causa bis vexari). This
Article most importantly protects a
person from self-incrimination. The
police subject a person to brutal
and continuous torture to make
him confess to a crime even if he
has not committed the same.
37

38. Article 21 of the Constitution of India:
This article has been understood in the
Indian judiciary to protect the right to be
free from torture. This view is held because
the right to life is more than a simple right
to live an animalistic existence. The
expression "life or personal liberty" in
Article 21 includes a guarantee against
torture and assault even by the State and
its functionaries to a person who is taken
in custody and no sovereign immunity can
be pleaded against the liability of the State
arising due to such criminal use of force
over the captive person. 38

39. Article 22 of the Constitution of India:
Article 22 provides four basic fundamental
rights with respect to arrested accused.
These include being informed of the grounds
of arrest, to be defended by a legal
practitioner of his choice, preventive
detention laws and production before the
nearest Magistrate within 24 hours of arrest
of the person. Thus, these provisions are
designed to ensure that a person is not
subjected to any ill-treatment that is devoid
of statutory backing or surpasses prescribed
excesses.
39

40. Other Statutory
Safeguards:
# Indian Evidence Act, 1872:
Section 24, Section 25.
# Code of Criminal Procedure,
1973:
Sections 41, 41A to 41D, 46, 49 to
56 are in consonance with Article
22. 40

41. Chapter XXII of the Code, wherein
provisions with respect to attendance
of persons confined or detained in
prison has been made. Sections 167
and 309 of the Code have the object
of bringing the accused persons
before the court and so safeguard
their rights and interests as the
detention is under their
authorisation.
41

42. Indian Police Act:- Sections 7 and 29
of the Act provide for dismissal,
penalty or suspension of police
officers who are negligent in the
discharge of their duties or unfit to
perform the same. This can be seen
in the light of the police officers
violating various constitutional and
statutory safeguards along with
guidelines given in D.K Basu v. State
of West Bengal.
42

43. Indian Penal Code (IPC), 1860:
After the Mathura Rape case, an
amendment was brought about in
Section 376 of the IPC. Section 376
penalises custodial rape committed by
police officers. This was a welcome
change made to the section in
question as it finally condemns the
acts of police officers who take
advantage of their authority.
43

44. Sections 330, 331, 342 and
348 of the IPC have
ostensibly been designed to
deter a police officer, who is
empowered to arrest a person
and to interrogate him during
investigation of an offence
from resorting to third degree
methods causing ‘torture’.
44

45. Judicial Precedents:- The Supreme
Court is heralded as a beacon of
rights against torture. Indeed,
since the 1990s, the Supreme
Court has come up with two
innovative ways of dealing with
custodial torture and custodial
death cases namely, the right to
compensation for custodial death
and torture and the formulation of
custody jurisprudence. 45

46. The case of Sheela Barse v. State of
Maharashtra, 1987(4) SCC 374
guidelines on rights of the arrested
persons especially women have been
issued. The court emphasised on the
need for Magistrates to inform all
arrested persons of their rights.
Guidelines have been issued in D.K
Basu v. State of W.B. - AIR 1997 SC
3017 with respect to rights of arrested
persons.
46

47. The most significant one being the
arrestee should be subjected to
medical examination every 48
hours during his detention by a
doctor from the approved panel of
doctors and copies of all
prescribed documents should be
sent to the concerned Magistrates.
Also, the arrestee may be
permitted to meet his lawyer
during interrogation. 47

48. THANK YOU
48